G.R. No.

202206

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
TENG MONER y ADAM, Accused-Appellant

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal of the Decision1 dated July 27, 2011 of the Court of Appeals in CA-G.R. CR-
H.C. No. 04399 entitled, People of the Philippines v. Teng Manery Adam, which affirmed the
Joint Decision2 dated August 4, 2009 of the Regional Trial Court (RTC) of Quezon City,
Branch 95 in Criminal Case Nos. Q-05-133982 and Q-05-133983. Anent Criminal Case No. Q-
05-133982, the trial court found appellant Teng Moner y Adam (Moner) guilty beyond
reasonable doubt of violating Section 5, Article II (sale of dangerous drugs) of Republic Act
No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002. In the same
judgment, Moner and his co-accused were acquitted of the charge of violating Section 11,
Article II (possession of dangerous drugs) of the same statute which was the subject of
Criminal Case No. Q-05-133983.

The crime of which Moner was convicted is described in the Information dated April 25, 2005,
as follows:

That on or about the 23rd day of April, 2005, in Quezon City, Philippines, the said accused, not
being authorized by law to sell, dispense, deliver, transport or distribute any dangerous
drug, did then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute
or act as broker in the said transaction, three point ninety-one (3.91) grams of
methylamphetamine hydrochloride, a dangerous drug.3

Subsequently, on May 16, 2005, Moner pleaded "NOT GUILTY" to the aforementioned charge
of illegal sale of dangerous drugs upon his arraignment.4

In its assailed Decision, the Court of Appeals presented the factual milieu of this case in this
manner:

To establish the guilt of accused-appellant, the prosecution presented three (3) witnesses
namely: P02 Joachim Panopio, P03 Junnifer Tuldanes and PO3 Edwin Lirio.

The prosecution's evidence tends to establish the following facts:

On April 23, 2005, the police operatives of Las Piñas Police Station Anti-Illegal Drugs Special
Operation Task Force (SAIDSOTF) had arrested a certain Joel Taudil for possession of illegal
drugs. Upon investigation, they gathered from Taudil that the source of the illegal drugs was
Teng Moner (herein accused-appellant) who hails from Tandang Sora, Quezon City.

As per this information, Police Chief Inspector Jonathan Cabal formed a team that would
conduct a buy-bust operation for the apprehension of accused-appellant. The team was
composed of himself, SP04 Arnold Alabastro, SPO1 Warlie Hermo, PO3 Junnifer Tuldanes,
PO3 Edwin Lirio, PO2 Rodel Ordinaryo, PO1 Erwin Sabbun and PO2 Joachim Panopio. The
marked and boodle money were given to PO2 Panopio who acted as the poseur-buyer.

Before proceeding with the buy-bust operation, the team prepared the pre-operation report
addressed to the Philippine Drug Enforcement Agency (PDEA), the authority to operate
outside their jurisdiction and the coordination paper. Thereafter, they proceeded to the
Central Police District Office (CPDO), Camp Karingal, Quezon City for proper coordination.
Thereafter, the team together with Taudil and a CPD-DIID personnel proceeded [to] No. 26
Varsity Lane, Barangay Culiat, Tandang Sora, Quezon City. Upon reaching the place they
made a surveillance and assumed their respective positions.

At the target area, P02 Panopio and Taudil went to accusedappellant's house. While outside
the gate, Taudil summoned accusedappellant and the latter came out after a few minutes.
The two men talked with each other in the Muslim dialect. Taudil introduced PO2 Panopio as
his friend to accused-appellant and told him that PO2 Panopio was interested to
buy shabu. PO2 Panopio asked for the price of five (5) grams of shabu. Accused-appellant
replied that the same would cost him ₱8,000.00 and asked him if he has the money. When
PO2 Panopio confirmed that he has the money with him, accused-appellant asked them to
wait and he went inside the house. When he returned after a few minutes, he handed a plastic
sachet containing a substance suspected as shabu to PO2 Panopio who in turn gave him the
marked and boodle money. Accused-appellant was about to count the money when PO2
Panopio gave the pre-arranged signal to his team and introduced himself as [a] police officer.

Accused-appellant resisted arrest and ran inside the house but PO2 Panopio was able to
catch up with him. The other members of the team proceeded inside the house and they saw
the other accused gather[ed] around a table re-packing shabu. PO3 Lirio confiscated the
items from them and placed the same inside a plastic bag.

After accused-appellant and his co-accused were arrested, the team proceeded to the Las
Piñas City Police Station. The items confiscated from them were turned over by PO2 Panopio
to PO3 Dalagdagan who marked them in the presence of the police operatives, accused-
appellant and his co-accused. PO3 Dalagdagan prepared the corresponding inventory of the
confiscated items. The specimens were then brought to the police crime laboratory for
testing. The specimens yielded positive to the test for methylamphetamine hydrochloride
or shabu.

Consequently, a case for Violation of Section 5, Article II of R.A. 9165 was filed against
accused-appellant and another for Violation of Section 11, Article II of R.A. 9165 against him
and his co-accused.

In refutation of the prosecution's version, the defense presented four (4) witnesses, to wit:
Judie Durado, Fatima Macabangen, accused-appellant and Richard Pascual.

It is the contention of the defense that on April 23, 2005, accused-appellant and his co-
accused in Criminal Case No. Q-05-133983 were at the house located along No. 26 Varsity
Lane, Philam, Tan.dang Sora, Quezon City to prepare for the wedding of Fatima Macabangen
and Abubakar Usman to be held the following day. While they were inside the house, several
armed persons wearing civilian clothes entered and announced that they were police
officers. They searched the whole house and gathered all of them in the living room.

The police officer who was positioned behind accused-appellant and Abubakar dropped a
plastic sachet. The former asked accused-appellant and Abubakar who owns the plastic
sachet. When accused-appellant .denied its ownership, the police officer slapped him and
accused him of being a liar. Thereafter, they were all frisked and handcuffed and were
brought outside the house. Their personal effects and belongings were confiscated by the
police officers. Then they boarded a jeepney and were brought to [the] Las Piñas Police
Station.

Upon their arrival, they were investigated. A police officer asked them to call up anybody
who can help them because they only needed money for their release. Judie Dorado called
up [his] mother. They saw the other items allegedly confiscated from them only at the police
station. At around 10:00 o'clock in the evening, they were brought to Camp Crame, Quezon
City. From there, they went to Makati for drug testing and were returned to Las Piñas Police
Station.

Subsequently, cases for Violation of R.A. No. 9165 were filed against them. 5
After receiving the evidence for both sides, the trial court convicted Moner on the charge of
selling shabu while, at the same time, acquitting him and his co-accused of the charge of
possession of illegal drugs. The dispositive portion of the August 4, 2009 Joint Decision of the
trial court reads:

WHEREFORE, the Court renders its Joint Decision as follows:

1. In Criminal Case No. Q-05-133982:

The Court finds accused TENG MONER Y ADAM "GUILTY" beyond reasonable doubt for
violation of Section 5, Article II of R.A. 9165 or illegal selling of three point ninety-one (3.91)
grams of methylamphetamine hydrochloride, a dangerous drug and he is hereby sentenced
to suffer the penalty of LIFE IMPRISONMENT and to pay a FINE of FIVE HUNDRED
THOUSAND PESOS (Php500,000.00).

2. In Criminal Case No. Q-05-133983:

The Court finds accused TENG MONER Y ADAM, JUDIE DURADO Y MACABANGEN, FATIMA
MACABANGEN Y NUÑEZ, ABUBAKAR USMAN Y MASTORA, GUIAMIL ABU Y JUANITEZ,
NORODIN USMAN Y MASTORA, RICHARD PASCUAL Y TANGALIN and AMINA USMAN-
MONER "NOT GUILTY" for violation of Section 11, Art. II of R.A. 9165 considering that the
prosecution failed to prove their guilt beyond reasonable doubt.

The pieces of evidence subject matter of Crim. Case No. Q-05- 133983 are hereby ordered to
be safely delivered to the Philippine Drug Enforcement Agency for proper disposition. 6

As can be expected, Moner elevated his case to the Court of Appeals which, unfortunately for
him, ruled to affirm the findings of the trial court and dispositively held:

WHEREFORE, the appealed Decision dated August 4, 2009 of the Regional Trial Court,
Branch 95, Quezon City in Criminal Case No. Q-05- 133982 finding accused-appellant guilty
beyond reasonable doubt is hereby AFFIRMED.7

Hence, Moner interposes this appeal wherein he reiterates the same errors on the part of the
trial court contained in his Brief filed with the Court of Appeals, to wit:

A. THE COURT A QUO SERIOUSLY ERRED WHEN IT ISSUED ITS DECISION DATED
AUGUST 4, 2009 FINDING THE ACCUSEDAPPELLANT MONER GUILTY BEYOND
REASONABLE DOUBT OF VIOLATING SECTION 5, ARTICLE II OF R.A. 9165, WHEN
THE TESTIMONIES OF THE THREE (3) PROSECUTION WITNESSES (P02 JOACHIM P
ANOPIO, P03 JUNNIFER TULDANES, AND P03 EDWIN LIRIO) ARE HIGHLY
INCREDIBLE AND UNBELIEVABLE TO PROVE THE ALLEGED BUY-BUST.

B. THE COURT A QUO SERIOUSLY ERRED IN ITS DECISION WHEN IT RELIED

SOLELY ON THE PERJURED TESTIMONIES OF THE PROSECUTION WITNESSES
POLICE OFFICERS WHICH ARE FULL OF INCONSISTENCIES.

C. THE COURT A QUO SERIOUSLY ERRED IN ISSUING THE ASSAILED DECISION

WHEN IT FAILED TO GIVE CREDENCE TO THE TESTIMONIES OF THE DEFENSE
WITNESSES WHO CLEARLY TESTIFIED THAT THERE WAS REALLY NO BUY-BUST
AND THAT APPELLANT MONER WAS NOT SELLING ANY PROHIBITED DRUGS.

D. THE COURT SERIOUSLY ERRED WHEN IT ISSUED THE ASSAILED DECISION

DESPITE THE FACT THAT THE PROSECUTION WITNESSES FAILED TO COMPLY
WITH THE MANDATORY PROVISION OF SEC. 19 OF R.A. NO. 9165, ON THE MATTER
OF PHYSICAL INVENTORY, AND PICTURE TAKING OF THE EVIDENCE ALLEGEDLY
 SEIZED FROM THE ACCUSED, AS WELL AS THE PROVISION OF SECTION 86
THEREOF.8

In sum, Moner maintains that the prosecution failed to discharge its burden of proof to
sustain his conviction for the charge of sale of dangerous drugs. He highlights the fact that
the prosecution failed to present in court the informant who pointed to him as a supplier
of shabu. He also stresses that the buy-bust operation was conducted without proper
coordination with the Philippine Drug Enforcement Agency (PDEA). Likewise, he derides the
testimonies of the prosecution witnesses as inconsistent, incredible and unworthy of belief.
Most importantly, he underscores the failure of the arresting officers to comply with the
statutorily mandated procedure for the handling and custody of the dangerous drugs
allegedly seized from him.

The appeal is without merit.

For a successful prosecution of an offense of illegal sale of dangerous drugs, the following
essential elements must be proven: (1) that the transaction or ·sale took place; (2) that
the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and
seller were identified.9

A perusal of the records of this case would reveal that the aforementioned elements were
established by the prosecution. The illegal drugs and the marked money were presented and
identified in court. More importantly, Police Officer (PO) 2 Joachim Panopio (PO2 Panopio ),
who acted as poseur-buyer, positively identified Moner as the seller of the shabu to him for a
consideration of ₱8,000.00.

With regard to Moner's contention that the prosecution's failure to present the informant in
court diminishes the case against him, we reiterate our pronouncement on this matter in the
recent case of People v. Lafaran10 :

It has oft been held that the presentation of an informant as witness is not regarded as
indispensable to the success of a prosecution of a drug-dealing accused. As a rule, the
informant is not presented in court for security reasons, in view of the need to protect the
informant from the retaliation of the culprit arrested through his efforts. Thereby, the
confidentiality of the informant's identity is protected in deference to his invaluable services
to law enforcement. Only when the testimony of the informant is considered absolutely
essential in obtaining the conviction of the culprit should the need to protect his security be
disregarded. In the present case, as the buy-bust operation was duly witnessed by SPO2 Aro
and PO3 Pera, their testimonies can take the place of that of the poseur-buyer.

Thus, we concur with the appellate court's finding that there is no need to present the
informant because PO2 Panopio, who acted as the poseur-buyer, had testified in court.
Furthermore, the other members of the buy-bust team, namely PO3 Junnifer Tuldanes (PO3
Tuldanes) and PO3 Edwin Lirio (PO3 Lirio ), gave clear and credible testimonies with regard
to the criminal transaction that was consummated by appellant and PO2 Panopio.

In addition, we rule that inconsistencies in the testimonies of the prosecution witnesses that
were pointed out by Moner consist merely of minor variances that do not deviate from the
main narrative which is the fact that Moner sold illegal drugs to a poseur-buyer. It has been
held, time and again, that minor inconsistencies and contradictions in the declarations of
witnesses do not destroy the witnesses' credibility but even enhance their truthfulness as
they erase any suspicion of a rehearsed testimony.11 It bears stressing, too, that the
determination by the trial court of the credibility of witnesses, when affirmed by the appellate
court, is accorded full weight and credit as well as great respect, if not conclusive effect. 12

Lastly, we can give no credence to Moner's contention that the prosecution failed to prove an
unbroken chain of custody in consonance with the requirements of law.
To ensure that the drug specimen presented in court as evidence against the accused is the
same material seized from him or that, at the very least, a dangerous drug was actually taken
from his possession, we have adopted the chain of custody rule. The Dangerous Drugs Board
(DDB) has expressly defined chain of custody involving dangerous drugs and other
substances in the following terms in Section 1 (b) of DDB Regulation No. 1, Series of 2002:

b. "Chain of Custody" means the duly recorded authorized movements and custody of seized
drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment
of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of movements and custody
of seized item shall include the identity and signature of the person who held temporary
custody of the seized item, the date and time when such transfer of custody were made in the
course of safekeeping and use in court as evidence, and the final disposition[.]

In relation to this, Section 21 of Republic Act No. 9165 pertinently provides the following:

SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take
charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in
the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence
of the accused or the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof[.]

Furthermore, Section 21(a) of the Implementing Rules and Regulations (IRR) of Republic Act
No. 9165 relevantly states:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous
Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in
the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof; Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that noncompliance with
these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items[.] (Emphasis supplied.)

We have consistently ruled that noncompliance with the requirements of Section 21 of

Republic Act No. 9165 will not necessarily render the illegal drugs seized or confiscated in a
buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is not
required if there is a clear showing that the integrity and evidentiary value of the seized
illegal drugs have been preserved, i.e., the illegal drugs being offered in court as evidence is,
without a specter of doubt, the very same item recovered in the buy-bust operation.13

With regard to the foregoing, Moner asserts that he should be acquitted of the criminal
charges levelled against him specifically because of the following serious lapses in
procedure committed by the apprehending officers: (a) the physical inventory was not
conducted at the place where the seizure was made; (b) the seized item was not
photographed at the place of seizure; and (c) there was no physical inventory and
photograph of the seized item in the presence of the accused, or his representative or
counsel, with an elected public official and a representative of the National Prosecution
Service or the media who shall be required to sign the copies of the inventory and be given a
copy thereof.

The aforementioned concerns can be squarely addressed by a careful and assiduous review
of the records of this case accompanied by a liberal application and understanding of
relevant jurisprudence in support thereof. Both object and testimonial evidence demonstrate
that the apprehending officers were able to mark the dangerous drugs seized and to prepare
a physical inventory of the same at the Las Piñas Police Station which was the place where
Moner and his co-accused were brought for processing. The following excerpts lifted from
the transcript of the testimony of PO2 Panopio during trial confirm this fact:

Q Now, Mr. Witness, after your team recovered [the] evidence on top of the table inside the
house, arrested those persons whom you identified a while ago and also arrested Teng
Moner recovered from him the buy-bust money, what happened next?

A We brought them to the police headquarters.

Q In what headquarters did you bring the persons arrested?

A We brought them to Special Action ... SAID-SOTF Las Piñas Police Station.

xxxx

Q Now, I would like to inform you that under Section 21 of the Republic Act 9165, the
arresting officer immediately after the arrest of the accused or the person buy-bust for
possession must prepare the inventory of seized evidence.

A Yes, sir.

Q What do you mean by "yes"?

A We did prepare an inventory, sir.

Q So, you are aware of that provision?

A I just forgot the Section 21, sir.

COURT: (to the witness)

Q You do not know that doing an inventory is a requirement under Section 21?

A Yes, your Honor.

PROS.: (to the witness)

Q Now, you said that you are aware of Section 21 an inventory must be made. Do you know
whether your team complied with that provision of the law upon reaching the station?

A Yes, sir,

Q What do you mean by "yes"?

A We made an Inventory Report, sir.

Q Where is now that Inventory Report?

A It's with the documents I submitted earlier in court, sir.

xxxx

PROS: (to the Court)

This piece of document handed by the witness your Honor, the Inventory of Property Seized
be marked as Exhibit "OOO".

COURT: (to the witness)

Q That is the original, Mr. Witness?

A Yes, your Honor.

xxxx

PROS.: (to the Court)

Q The signature of PO3 Rufino G. Dalagdagan under the heading "Received By:" be
bracketed and be marked as Exhibit "OOO-1"; the list of the articles appearing [in] the body
of Exhibit "OOO" be bracketed and be marked as Exhibit "OOO-2". This Receipt of Property
Turned-Over, your Honor, which states: "I, P03 RUFINO G. DALAGDAGAN OF SAID-SOTF,
LAS PINAS CITY POLICE STATION, SPD hereby acknowledge received (sic) the
items/articles listed hereunder [from] PO2 JOACHIM P. PANOPIO" and may we request, your
honor that letters appearing on the top of the name TENG MONER ADAM, ET AL. (RTS) be
marked as Exhibit "OOO-3"

PROS.: (to the witness)

Q Who prepared this Exhibit "OOO"?

A PO3 Rufino Dalagdagan, sir.

Q These items listed [in] the body of marked as Exhibit "OOO", who made these items?

A I, myself, sir.

Q Now, showing to you this Exhibit marked as "OOO-3" particularly on [the] letters RPS
appearing inside the parenthesis, who placed that entry (RPS)?

A Police Officer Dalagdagan, sir.

Q Where were you at the time when this (RPS) marked as Exhibit "OOO-3" was made?
A I was inside the office, sir.

Q Where were those persons whom your team arrested when this evidence marked as
Exhibit "OOO" was made?

A They were also inside the office, sir.

xxxx

Q You said a while ago that in consideration with the buy-bust money, you received from the
accused, Teng Moner, that plastic sachet containing shabu. Upon reaching the station, what
happened to the plastic sachet, subject matter of the buy-bust operation?

A I turned it over, sir.

Q To whom?

A PO3 Dalagdagan, sir.

Q And before you turned it over to the investigator, PO3 Dalagdagan, that shabu subject
matter of the buy-bust operation, what did you do with it?

A He placed [the] markings on it, sir.

Q Showing to you several pieces of evidence placed inside the brown envelope. Kindly look
at the same and pick from these several items that plastic sachet, subject matter of the buy-
bust operation?

A (Witness picked from the bunch of evidence the plastic sachet which already marked as
Exhibit "P" and he read [the] markings "TMAU1-23APR05".)

Q Now, you also stated a while ago that you were the one who personally recovered the buy-
bust money used in the operation from the possession of the accused, Teng Moner. If the
same would be shown to you, would you be able to identify it?

A Yes, sir.

xxxx

Q Now, you also stated that the Request for Laboratory Examination was made by the
investigator, Now, who delivered the plastic sachet subject matter of the buy-bust operation
for laboratory examination?

A We did, sir.14 (Emphases supplied.)

Judging from the cited testimony, it is apparent that the apprehending officers were able to
substantially comply with the requirements of the law regarding the custody of confiscated
or seized dangerous drugs. When cross-examined by the defense counsel during trial about
the reason behind the buy-bust team's noncompliance with standard procedure, PO3
Tuldanes, one of the apprehending officers, gave the following response:

ATTY. PALAD: (to witness)

Q Meaning you had no time to make the inventory right at the scene of the alleged buy-bust?

A Yes, sir, because we were immediately instructed to pull out from the area.
Q Was there any threat on your lives that you immediately pulled out from the said area?

A It was not our area - Area of Responsibility - so we just wanted to make sure, for security
and immediately left, sir.

Q So this fear for security, you did not follow this photographing/inventory?

A We did not do that anymore, sir, because our security was at risk. 15

Verily, the circumstances that the buy-bust team proceeded first to the Central Police
District (CPD) Station, Camp Karingal in Quezon City and, from there, they were
accompanied by a police officer from the CPD to the target location, aside from proving that
it was a legitimate police operation, supported the existence of a security risk to the buy-bust
team. These additional precautions taken by the buy-bust team underscored their
unfamiliarity with the location of the operation and, in fact, corroborated the above-quoted
testimony that the buy-bust team believed there was a threat to their security.

With regard to the accused’s allegation that the buy-bust team failed to coordinate with the
PDEA before proceeding with the operation that nabbed Moner, both the trial court and the
Court of Appeals declare in unison that the requisite prior coordination with PDEA did
happen. Likewise, our own review did not provide any reason for us to disbelieve said
established fact.

To reiterate, noncompliance with the chain of custody rule is excusable as long as there exist
justifiable grounds which prevented those tasked to follow the same from strictly conforming
to the said directive. The preceding discussion clearly show that the apprehending officers in
this case did not totally disregard prescribed procedure but, instead, demonstrated
substantial compliance with what was required. It was likewise explained that the divergence
in procedure was not arbitrary or whimsical but because the buy-bust team decided that they
could not linger at the crime scene as it would unduly expose them to security risks since
they were outside their area of responsibility.

Notably, in the recent case of Palo v. People, 16 we affirmed a conviction for illegal
possession of dangerous drugs despite the fact that the seized illegal substance was only
marked at the police station and that there was no physical inventory or photograph of the
same:

The fact that the apprehending officer marked the plastic sachet at the police station, and
not at the place of seizure, did not compromise the integrity of the seized item.
Jurisprudence has declared that "marking upon immediate confiscation" contemplates even
marking done at the nearest police station or office of the apprehending team. Neither does
the absence of a physical inventory nor the lack of photograph of the confiscated item
renders the same inadmissible. What is of utmost importance is the preservation of the
integrity and evidentiary value of the seized items as these would be used in determining the
guilt or innocence of the accused.17

With regard to the third breach of procedure highlighted by Moner, this Court
cites People v. Usman18 wherein we declared that the chain of custody is not established
solely by compliance with the prescribed physical inventory and photographing of the seized
drugs in the presence of the enumerated persons by law. In that case, the police officers who
arrested and processed the accused did not perform the prescribed taking of photographs
under the law but, nevertheless, the assailed conviction was upheld. The Court reasoned
thus:

[T]his Court has, in many cases, held that while the chain of custody should ideally be
perfect, in reality it is not, "as it is almost always impossible to obtain an unbroken chain."
The most important factor is the preservation of the integrity and the evidentiary value of the
seized items as they will be used to determine the guilt or innocence of the accused. x x x. 19
In the case at bar, the records indicate that the integrity and the evidentiary value of the
seized items had been preserved despite the procedural infirmities that accompanied the
process. On this score, we quote with approval the disquisition of the Court of Appeals:

The record shows that upon the arrest of accused-appellant, the shabu and marked money
were confiscated from him by P02 Panopio. Accused-appellant was immediately brought to
the Las Piñas Police Station where the items confiscated from him were turned-over by P02
Panopio to P03 Dalagdagan, the investigator-on-case. The latter received the confiscated
items and marked them in the presence of P02 Panopio and accused-appellant. An inventory
of the confiscated items was also made.

Thereafter, the request for laboratory examination was prepared by P03 Dalagdagan and
signed by P/C Insp. Jonathan A. Cabal. The specimen together with the request was brought
to the PNP Crime Laboratory, Camp Crame, Quezon City by P02 Panopio and the other police
officers. There, it was received by PSI Michael S: Holada, who delivered the specimen and
request for laboratory test to the forensic chemist PIS Maridel C. Rodis. After examination,
the specimen submitted for testing proved positive for Methylamphetamine Hydrochloride, a
dangerous drug. The result of the test was reduced to writing and signed by the forensic
chemist. It was duly noted by P/Sr. Supt. Ricardo Cacholaver. It is worth stressing that the
prosecution and defense had agreed to dispense with the testimony of the forensic chemist
and stipulated among others that she could identify the documents and the specimens she
examined.20 (Emphases supplied and citations omitted.)

Anent Moner' s allegation that the buy-bust team asked money from him and his former co-
accused in exchange for their liberty, it must be emphasized that the said allegation only
came to light when defense counsel asked appellant what happened when he and his former
co-accused were brought to the Las Piñas Police Station.21 Curiously, however, defense
counsel did not confront any of the prosecution witnesses regarding the said accusation.
More importantly, based on the record, no criminal or administrative· case relating thereto
was ever filed by Moner or any of his former co-accused against their alleged extortionists.
Nevertheless, on this particular issue, we would like to reiterate our ruling that the defense of
denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can
just easily be concocted and is a common and standard defense ploy in most prosecution for
violation of the Dangerous Drugs Act.22

At this juncture, it bears repeating that in cases involving violations of the Dangerous Drugs
Act, credence is given to prosecution witnesses who are police officers, for they are
presumed to have performed their duties in a regular manner, unless there is evidence to the
contrary.23 Admittedly, the buy-bust team did not follow certain aspects of procedure to the
letter but this was excusable under the saving clause of the chain of custody rule and
prevailing jurisprudence. As a consequence thereof, their arrest of Moner in the
performance of their duty cannot be described as having been done so irregularly as to
convince this Court to invalidate the credibility and belief bestowed by the trial court on the
prosecution evidence. Accordingly, Moner must provide clear and convincing evidence to
overturn the aforesaid presumption that the police officers regularly performed their duties
but the records show that he has failed to do so. Absent any proof of mishandling, tampering
or switching of evidence presented against him by the arresting officers and other
authorities involved in the chain of custody, the presumption remains.

This is not the first time that this Court has been confronted with the question of whether or
not to uphold the conviction of a person arrested for the illegal sale of dangerous drugs who
had been positively identified by credible witnesses as the perpetrator of said crime but the
manner by which the evidence of illegal drugs was handled did not strictly comply with the
chain of custody rule. To reiterate past pronouncements, while ideally the procedure on the
chain of custody should be perfect and unbroken, in reality, it is not as it is almost always
impossible to obtain an unbroken chain.24 Unfortunately; rigid obedience to procedure
creates a scenario wherein the safeguards that we set to shield the innocent are likewise
exploited by the guilty to escape rightful punishment. Realizing the inconvenient truth that no
perfect chain of custody can ever be achieved, this Court has consistently held that the most
important factor in the chain of custody rule is the preservation of the integrity and
evidentiary value of the seized items.25

We find it apropos to highlight this Court's discussion in Zalameda v. People, 26 which was
restated in the recent case of Saraum v. People27

We would like to add that noncompliance with Section 21 of said law, particularly the making
of the inventory and the photographing of the drugs confiscated and/or seized, will not
render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court,
evidence is admissible when it is relevant to the issue and is not excluded by the law or these
rules. For evidence to be inadmissible, there should be a law or rule which forbids its
reception. If there is no such law or rule, the evidence must be admitted subject only to the
evidentiary weight that will accorded it by the court x x x.

We do not find any provision or statement in said law or in any rule that will bring about the
non-admissibility of the confiscated and/or seized drugs due to noncompliance with Section
21 of Republic Act No. 9165. The issue therefore, if there is noncompliance with said section,
is not of admissibility, but of weight - evidentiary merit or probative value - to be given the
evidence. The weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.

Stated differently, if the evidence of illegal drugs was not handled precisely in the manner
prescribed by the chain of custody rule, the consequence relates not to inadmissibility that
would automatically destroy the prosecution's case but rather to the weight of evidence
presented for each particular case. In the case at bar, the trial court judge convicted Moner
on the strength of the credibility of the prosecution's witnesses despite an imperfect chain of
custody concerning the corpus delicti.

It should be noted that Section 21(a) of the IRR of Republic Act No. 9165 provides that:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous
Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:

(1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation, conduct a physical inventory of
the seized items and photograph the same in the presence of the accused or the persons
from whom such items were confiscated and/or seized, or his/her representative or counsel,
with an elected public official and a representative of the National Prosecution Service or the
media who shall be required to sign the copies of the inventory and be given a copy
thereof: Provided, That the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of warrantless
seizures: Provided, finally, That noncompliance of these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures
and custody over said items. (Emphases supplied.)

The above-quoted provision recognizes that the credibility of the prosecution's witnesses
and the admissibility of other evidence are well within the power of trial court judges to
decide. Paragraph (5), Section 5, Article VIII of the 1987 Constitution vests upon the Supreme
Court the following power, among others:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.

Jurisprudence explains the above-quoted constitutional provision m the following manner:

Until the 1987 Constitution took effect, our two previous constitutions textualized a power
sharing scheme between the legislature and this Court in the enactment of judicial rules.
Thus, both the 1935 and the 1973 Constitutions vested on the Supreme Court the "power to
promulgate rules concerning pleading, practice, and procedure in all courts, and the
admission to the practice of law." However, these constitutions also granted to the
legislature the concurrent power to "repeal, alter or supplement" such rules.

The 1987 Constitution textually altered the power-sharing scheme under the previous
charters by deleting in Section 5(5) of Article VIII Congress' subsidiary and corrective power.
This glaring and fundamental omission led the Court to observe in Echegaray v. Secretary of
Justice that this Court's power to promulgate judicial rules "is no longer shared by this Court
with Congress."28

The power to promulgate rules concerning pleading, practice and procedure in all courts is a
traditional power of this Court.29 This includes the power to promulgate the rules of evidence.

On the other hand, the Rules of Evidence are provided in the Rules of Court issued by the
Supreme Court. However, the chain of custody rule is not found in the Rules of Court. Section
21 of Republic Act No. 9165 was passed by the legislative department and its implementing
rules were promulgated by PDEA, in consultation with the Department of Justice (DOJ) and
other agencies under and within the executive department.

In the United States, the chain of custody rule is followed by the federal courts using the
provisions of the Federal Rules of Evidence. The Federal Court of Appeals applied this rule
in United States v. Ricco30 and held as follows:

The "chain of custody" rule is found in Fed. R. Evid. 901, which requires that the admission of
an exhibit must be preceded by "evidence sufficient to support a finding that the matter in
question is what its proponent claims." x x x.

x x x As we have pointed out, the "chain of custody' is not an iron-clad requirement, and the
fact of a ‘missing link' does not prevent the admission of real evidence, so long as there is
sufficient proof that the evidence is what it purports to be and has not been altered in any
material respect." x x x.

According to Cornell University's online legal encyclopedia, "[r]ules of evidence are, as the
name indicates, the rules by which a court determines what evidence is admissible at trial. In
the U.S., federal courts follow the Federal Rules of Evidence, while state courts generally
follow their own rules."31 In the U.S. State of Alaska, for example, the "chain of custody" rule
is found in Alaska Evidence Rule 901(a).32

Evidence is defined in Section 1 of Rule 12833 as "the means, sanctioned by these rules,
of ascertaining in a judicial proceeding the truth respecting a matter of fact." Section 2 of the
same Rule provides that "[t]he rules of evidence shall be the same in all courts and in all trials
and hearings, except as otherwise provided by law or these rules."

Furthermore, the said Rule provides for the admissibility of evidence, and states that "[ e
]vidence is admissible when it is relevant to the issue and is not excluded by the law or these
rules." The Rules of Admissibility provide that "[ o ]bjects as evidence are those addressed to
the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court. "34

Under the doctrine of separation of powers, it is important to distinguish if a matter is a

proper subject of the rules of evidence, which as shown above are promulgated by the Court,
or it is a subject of substantive law, and should be passed by an act of Congress. The Court
discussed this distinction in the early case of Bustos v. Lucero35:

Substantive law creates substantive rights and the two terms in this respect may be said to
be synonymous. Substantive rights is a term which includes those rights which one enjoys
under the legal system prior to the disturbance of normal relations. (60 C. J., 980.)
Substantive law is that part of the law which creates, defines and regulates rights, or which
regulates ·the rights and duties which give rise to a cause of action; that part of the law
which courts are established to administer; as opposed to adjective or remedial law, which
prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27;
52 C. J. S., 1026.)

As applied to criminal law, substantive law is that which declares what acts are crimes and
prescribes the punishment for committing them, as distinguished from the procedural law
which provides or regulates the steps by which one who commits a crime is to be
punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it
is the first step taken in a criminal prosecution.

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is "the
mode and manner of proving the competent facts and circumstances on which a party relies
to establish the fact in dispute in judicial proceedings" - is identified with and forms part of
the method by which, in private law, rights are enforced and redress obtained, and, in
criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence
and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The entire rules of evidence have
been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on
constitutional grounds without throwing out the whole code of evidence embodied in these
Rules.

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:

"Expressions are to be found in earlier judicial opinions to the effect that the constitutional
limitation may be transgressed by alterations in the rules of evidence or procedure. See
Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326,
18 L. ed., 356, 364; Kring vs.Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Sup.
Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a
defense available under the laws in force at the time of the commission of his offense, or
which otherwise affect him in such a harsh and arbitrary manner as to fall within the
constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep.,
443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is now
well settled that statutory changes in the mode of trial or the rules of evidence, which do not
deprive the accused of a defense and which operate only in a limited and unsubstantial
manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges
the class of persons who may be witnesses at the trial, by removing the disqualification of
persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L.
ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules
of evidence after the indictment so as to render admissible against the accused evidence
previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup.
Ct. Rep., 922; or which changes the place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed.,
573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead.
See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570."

xxxx
The distinction between "remedy" and "substantive right" is incapable of exact definition.
The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467;
Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which
legislative power over remedy and procedure can pass without touching upon the
substantive rights of parties affected, as it is impossible to fix that boundary by general
condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme
Court in making rules should step on substantive rights, and the Constitution must be
presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh
and arbitrary manner or deprive him of a defense, but operates only in a limited and
unsubstantial manner to his disadvantage. For the Court's power is not merely to compile,
revise or codify the rules of procedure existing at the time of the Constitution's approval. This
power is "to promulgate rules concerning pleading, practice, and procedure in all courts,"
which is a power to adopt a general, complete and comprehensive system of procedure,
adding new and different rules without regard to their source and discarding old ones.

To emphasize, the distinction in criminal law is this: substantive law is that which declares
what acts are crimes and prescribes the punishment for committing them, as distinguished
from the procedural law which provides or regulates the steps by which one who commits a
crime is to be punished.36

Based on the above, it may be gleaned that the chain of custody rule is a matter of evidence
and a rule of procedure.1âwphi1 It is therefore the Court who has the last say regarding the
appreciation of evidence. Relevant portions of decisions elucidating on the chain of custody
rule are quoted below:

Saraum v. People37:

The chain of custody rule requires the identification of the persons who handled the
confiscated items for the purpose of duly monitoring the authorized movements of the illegal
drugs and/or drug paraphernalia from the time they were seized from the accused until the
time they are presented in court.x x x. (Citation omitted.)

Mallillin v. People38 :

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of
possession of a prohibited substance be established with moral certainty, together with the
fact that the same is not authorized by law. The dangerous drug itself constitutes the
very corpus delicti of the offense and the fact of its existence is vital to a judgment of
conviction. Essential therefore in these cases is that the identity of the prohibited drug be
established beyond doubt. Be that as it may, the mere fact of unauthorized possession will
not suffice to create in a reasonable mind the moral certainty required to sustain a finding of
guilt. More than just the fact of possession, the fact that the substance illegally possessed in
the first place is the same substance offered in court as exhibit must also be established with
the same unwavering exactitude as that requisite to make a finding of guilt. The chain of
custody requirement performs this function in that it ensures that unnecessary doubts
concerning the identity of the evidence are removed.

As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to the time it is offered into
evidence, in such a way that every person who touched the exhibit would describe how and
from whom it was received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition in which it was delivered
to the next link in the chain. These witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. (Citations omitted.)
These are matters well within the powers of courts to appreciate and rule upon, and so, when
the courts find appropriate, substantial compliance with the chain of custody rule as long as
the integrity and evidentiary value of the seized items have been preserved may warrant the
conviction of the accused. This is the rationale, grounded on the constitutional power of the
Court, to pass upon the credibility and admissibility of evidence that underlies the proviso in
Section 21(a) of the IRR of Republic Act No. 9165.

To conclude, this Court has consistently espoused the time-honored doctrine that where the
issue is one of credibility of witnesses, the findings of the trial court are not to be disturbed
unless the consideration of certain facts of substance and value, which have been plainly
overlooked, might affect the result of the case.39 We do not believe that the explainable
deviations to the chain of custody rule demonstrated by the police officers involved in this
case are reason enough to overturn the findings of the trial court judge, who personally
observed and weighed the testimony of the witnesses during trial and examined the evidence
submitted by both parties.

In light of the foregoing, we are compelled to dismiss the present appeal and affirm the
conviction of Moner for the crime of illegal sale of dangerous drugs.

WHEREFORE, premises considered, the present appeal is DISMISSED for lack of merit. The
assailed Decision dated July 27, 2011 of the Court of Appeals in CA-G.R. CR-H.C. No. 04399
is AFFIRMED.

SO ORDERED.

G.R. No. 145169 May 13, 2004

SIENA REALTY CORPORATION, as represented by LYDIA CO HAO and LILIBETH

MANLUGON, petitioner,
vs.
HON. LOLITA GAL-LANG, as Presiding Judge of the RTC of Manila, Branch 44; ANITA CO NG
in trust for ROCKEFELLER NG; and the COURT OF APPEALS, SPECIAL 13th
DIVISION, respondents.

DECISION

CARPIO MORALES, J.:

Challenged via petition for review on certiorari under Rule 45 of the 1997 Revised Rules of
Court is the September 13, 2000 Resolution of the Court of Appeals in C.A.-G.R. SP No.
59096, Siena Realty Corporation, as represented by Lydia Co Hao and Lilibeth Manlugon v.
Hon. Lolita O. Gal-lang, as Presiding Judge of Br. 44 of the RTC of Manila, and Anita Co Ng in
trust for Rockefeller Ng.

Since the petition attributes grave abuse of discretion on the part of the Court of Appeals in
the issuance of subject resolution, what should have been filed was one for certiorari under
Rule 65. On this score alone, the petition must be denied due course.

But even if technicality were set aside, just the same the petition fails.
Petitioners filed a petition for certiorari before the Court of Appeals on June 7, 2000 or
allegedly on the 60th day from their receipt of the March 23, 2000 Order of Branch 44 of the
Manila Regional Trial Court denying their motion for Reconsideration of said court’s
Order dismissing, on motion of private respondent, their complaint.

The Court of Appeals, by Resolution1 of June 20, 2000, dismissed petitioner’s petition for
certiorari, however, for being filed out of time, it holding that:

Per records, it appears that petitioners had only until May 29, 2000 within which to file
the Petition for Certiorari considering the following:

1. Petitioners received a copy of the October 20, 1999 Order denying their
[counsel’s] Notice of Withdrawal [and likewise denying petitioners’ Motion for
Reconsideration of the Order dismissing their complaint] on November 8,
1999;

2. Petitioners filed a motion for reconsideration of the October 20, 1999 Order
on November 17, 1999; and that

3. Petitioners received a copy of the March 23, 2000 Order denying their
motion for reconsideration on April 8, 2000.

The instant petition was filed on June 7, 2000 or nine (9) days late.

Thus, for being belatedly filed, the instant petition is hereby DISMISSED.

Petitioners thereupon filed (on July 10, 2000) a motion for reconsideration 2 of the above-said
June 20, 2000 Order of the appellate court.

In the meantime, this Court issued in A.M. No. 00-2-03-SC (Reglamentary Period to File
Petitions for Certiorari and Petition for Review on Certiorari ) a Resolution dated August 1,
2000 approving the amendment to the following provision of Section 4, Rule 65 of the 1997
Rules of Civil Procedure:

SECTION 4. Where petition filed. – The petition may be filed not later than sixty (60)
days from notice of the judgment, order, resolution sought to be assailed in the
Supreme Court or, if it relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be
filed in the Court of Appeals whether or not the same is in aid of its jurisdiction. If it
involves the acts or omissions of a quasi-judicial agency, and unless otherwise
provided by law or these Rules, the petition shall be filed in and cognizable only by the
Court of Appeals.

If the petitioner had filed a motion for new trial or reconsideration after notice of said
judgment, order or resolution, the period herein fixed shall be interrupted. If the
motion is denied, the aggrieved party may file the petition within the remaining
period, but which shall not be less than five (5) days in any event, reckoned from
notice of such denial. No extension of time shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days. (Emphasis and
underscoring supplied)

The amendment to Sec. 4, Rule 65, which took effect on September 1, 2000, reads:

SECTION 4. When and where petition filed. – The petition shall be filed not later than
sixty (60) days from notice of the judgment, order or resolution. In case a motion for
 reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of the said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions
of a lower court or of a corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as defined by the Supreme
Court. It may also be filed in the Court of Appeals whether or not the same is in the aid
of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless
otherwise provided by law or these rules, the petition shall be filed in and cognizable
only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason
and in no case exceeding fifteen (15) days. (Emphasis and underscoring supplied)

The Court of Appeals, acting on petitioners’ Motion for Reconsideration of its Order of June
20, 2000, denied, by Resolution of September 13, 2000,3 said motion in this wise:

xxx

From the argument espoused by petitioners’ counsel, it appears that he overlooked

the provision of second paragraph of Sec. 4, Rule 65 of the 1997 Rules of Civil
Procedure as amended per Supreme Court Circular dated July 21, 1998, which
provides as follows:

"If the petitioner had filed a motion for new trial or reconsideration after notice
of said judgment, order or resolution, the period herein fixed shall be
interrupted. If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five (5) days in
any event, reckoned from notice of such denial. No extension of time shall be
granted except for the most compelling reason and in no case to exceed
fifteen (15) days."

Verily, the sixty (60) day period within which to file a Petition for Certiorari is not
counted from the date of the receipt of the denial of Motion for Reconsideration, but
from the date of the receipt of the questioned order or decision, except that such 60-
day period is interrupted upon the filing of a Motion for Reconsideration.

WHEREFORE, for reason above-stated, the instant motion is DENIED. Consequently,

the present Petition for Certiorari is DISMISSED with finality. (Underscoring supplied)

Hence, the petition at bar, petitioners challenging the September 13, 2000 Resolution of the
appellant court as having been

. . . ISSUED WITH GRAVE ABUSE OF DISCRETION AS IT WAS MADE WITHOUT

TAKING PRIOR JUDICIAL NOTICE OF SUPREME COURT A.M. NO. 00-2 - 03 SC
WHICH RESOLUTION TOOK EFFECT ON SEPTEMBER 1, 2000, AND WHICH
AMENDED THE SECOND PARAGRAPH OF SECTION 4, RULE 65 OF THE 1997 RULES
OF CIVIL PROCEDURE.4 (Underscoring supplied)

Petitioner’s argument is well-taken.

Section 1, Rule 129 of the Rules on Evidence reads:

SECTION 1. Judicial notice, when mandatory. – A court shall take judicial

notice, without the introduction of evidence, of the existence and territorial extent of
states, their political history, forms of government and symbols of nationality, the law
 of nations, the admiralty and maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time,
and the geographical divisions. (Emphasis and underscoring supplied)

Even if petitioner did not raise or allege the amendment in their motion for reconsideration
before it, the Court of Appeals should have taken mandatory judicial notice of this Court’s
resolution in A.M. Matter No. 00-02-03 SC. The resolution did not have to specify that it had
retroactive effect as it pertains to a procedural matter. Contrary to private respondent’s
allegation that the matter was no longer pending and undetermined, the issue of whether the
petition for certiorari was timely filed was still pending reconsideration when the amendment
took effect on September 1, 2000, hence, covered by the its retroactive application.

The amendatory rule in their favor notwithstanding, petitioners’ petition fails as stated early
on. The order of the trial court granting private respondent’s Motion to Dismiss the complaint
was a final, not interlocutory, order and as such, it was subject to appeal, 5 not a petition for
certiorari. At the time petitioners filed before the appellate court their petition for certiorari
on the 60th day following their receipt of the October 20, 1999 Order of the trial court
denying their Motion for Reconsideration of its dismissal order, the said October 20, 1999
Order had become final and executory after the 15th day following petitioners’ receipt
thereof.

WHEREFORE, the instant petition is, in light of the foregoing discussions, hereby DENIED.

SO ORDERED.

G.R. No. 149724 August 19, 2003

DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, represented herein by its

Secretary, HEHERSON T. ALVAREZ, Petitioner,
vs.
DENR REGION 12 EMPLOYEES, represented by BAGUIDALI KARIM, Acting President of
COURAGE (DENR Region 12 Chapter), Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review assailing the Resolutions dated May 31, 2000 1 of the Court of
Appeals which dismissed the petition for certiorari in CA-G.R. SP No. 58896, and its
Resolution dated August 20, 20012 , which denied the motion for reconsideration.

The facts are as follows:

On November 15, 1999, Regional Executive Director of the Department of Environment and
Natural Resources for Region XII, Israel C. Gaddi, issued a Memorandum3 directing the
immediate transfer of the DENR XII Regional Offices from Cotabato City to Koronadal
(formerly Marbel), South Cotabato. The Memorandum was issued pursuant to DENR
Administrative Order No. 99-14, issued by then DENR Secretary Antonio H. Cerilles, which
reads in part:

Subject: Providing for the Redefinition of Functions and Realignment of Administrative Units
in the Regional and Field Offices:
Pursuant to Executive Order No. 192, dated June 10, 1987 and as an interim administrative
arrangement to improve the efficiency and effectiveness of the Department of Environment
and Natural Resources (DENR) in delivering its services pending approval of the
government-wide reorganization by Congress, the following redefinition of functions and
realignment of administrative units in the regional and field offices are hereby promulgated:

Section 1. Realignment of Administrative Units:

The DENR hereby adopts a policy to establish at least one Community Environment and
Natural Resources Office (CENRO) or Administrative Unit per Congressional District except
in the Autonomous Region of Muslim Mindanao (ARMM) and the National Capital Region
(NCR). The Regional Executive Directors (REDs) are hereby authorized to realign/relocate
existing CENROs and implement this policy in accordance with the attached distribution list
per region which forms part of this Order. Likewise, the following realignment and
administrative arrangements are hereby adopted:

xxx xxx xxx

1.6. The supervision of the Provinces of South Cotabato and Sarangani shall be transferred
from Region XI to XII.4

Respondents, employees of the DENR Region XII who are members of the employees
association, "COURAGE", represented by their Acting President, Baguindanai A. Karim, filed
with the Regional Trial Court of Cotabato, a petition for nullity of orders with prayer for
preliminary injunction.

On December 8, 1999, the trial court issued a temporary restraining order enjoining
petitioner from implementing the assailed Memorandum. The dispositive portion of the Order
reads:

WHEREFORE, defendants DENR Secretary Antonio H. Cerilles and Regional Executive

Director Israel C. Gaddi are hereby ordered to cease and desist from doing the act
complained of, namely, to stop the transfer of DENR [Region] 12 offices from Cotabato City to
Korandal (Marbel), South Cotabato.

xxx xxx xxx.

SO ORDERED.5

Petitioner filed a Motion for Reconsideration with Motion to Dismiss, raising the following
grounds:

I.

The power to transfer the Regional Office of the Department of Environment and
Natural Resources (DENR) is executive in nature.

II.

The decision to transfer the Regional Office is based on Executive Order No. 429,
which reorganized Region XII.

III.

The validity of EO 429 has been affirmed by the Honorable Supreme Court in the Case
of Chiongbian vs. Orbos (1995) 245 SCRA 255.
 IV.

Since the power to reorganize the Administrative Regions is Executive in Nature

citing Chiongbian, the Honorable Court has no jurisdiction to entertain this petition.6

On January 14, 2000, the trial court rendered judgment, the dispositive portion of which
reads:

CONSEQUENTLY, order is hereby issued ordering the respondents herein to cease and
desist from enforcing their Memorandum Order dated November 15, 1999 relative to the
transfer of the DENR Regional Offices from Region 12 to Region 11 at Koronadal, South
Cotabato for being bereft of legal basis and issued with grave abuse of discretion amounting
to lack or excess of jurisdiction on their part, and they are further ordered to return back the
seat of the DENR Regional Offices 12 to Cotabato City.

SO ORDERED.7

Petitioner’s motion for reconsideration was denied in an Order dated April 10, 2000. A
petition for certiorari under Rule 65 was filed before the Court of Appeals, docketed as CA-
G.R. SP No. 58896. The petition was dismissed outright for: (1) failure to submit a written
explanation why personal service was not done on the adverse party; (2) failure to attach
affidavit of service; (3) failure to indicate the material dates when copies of the orders of the
lower court were received; (4) failure to attach certified true copy of the order denying
petitioner’s motion for reconsideration; (5) for improper verification, the same being based
on petitioner’s "knowledge and belief," and (6) wrong remedy of certiorari under Rule 65 to
substitute a lost appeal.8

The motion for reconsideration was denied in a resolution dated August 20, 2001. 9 Hence,
this petition based on the following assignment of errors:

RULES OF PROCEDURE CAN NOT BE USED TO DEFEAT THE ENDS OF SUBSTANTIAL

JUSTICE

II

THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 WHICH WAS AFFIRMED
IN THE QUESTIONED RESOLUTIONS OF THE COURT OF APPEALS DATED 31 MAY 2000
AND 20 AUGUST 2001 IS PATENTLY ILLEGAL AND SHOULD BE NULLIFIED, CONSIDERING
THAT:

A. RESPONDENTS HAVE NO CAUSE OF ACTION AGAINST PETITIONER AS THEY

HAVE NO RIGHT TO CAUSE THE DENR REGION 12 OFFICE TO REMAIN IN
COTABATO CITY.

B. THE STATE DID NOT GIVE ITS CONSENT TO BE SUED.

C. THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 IS CONTRARY

TO THE RULE OF PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF
OFFICIAL FUNCTIONS.

D. IN ANY EVENT, THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000
IS CONTRARY TO THE LETTER AND INTENT OF EXECUTIVE ORDER NO. 429 AND
REPUBLIC ACT NO. 6734.
 E. THE DETERMINATION OF THE PROPRIETY AND PRACTICALITY OF THE
TRANSFER OF REGIONAL OFFICES IS INHERENTLY EXECUTIVE, AND THEREFORE,
NON-JUSTICIABLE.10

In essence, petitioner argues that the trial court erred in enjoining it from causing the
transfer of the DENR XII Regional Offices, considering that it was done pursuant to DENR
Administrative Order 99-14.

The issues to be resolved in this petition are: (1) Whether DAO-99-14 and the Memorandum
implementing the same were valid; and (2) Whether the DENR Secretary has the authority to
reorganize the DENR.

Prefatorily, petitioner prays for a liberal application of procedural rules considering the
greater interest of justice.

This Court is fully aware that procedural rules are not to be simply disregarded for these
prescribed procedures ensure an orderly and speedy administration of justice. However, it is
equally true that litigation is not merely a game of technicalities. Time and again, courts have
been guided by the principle that the rules of procedure are not to be applied in a very rigid
and technical manner, as rules of procedure are used only to help secure and not to override
substantial justice.11 Thus, if the application of the Rules would tend to frustrate rather than
promote justice, it is always within the power of this Court to suspend the rules, or except a
particular case from its operation.12

Despite the presence of procedural flaws, we find it necessary to address the issues
because of the demands of public interest, including the need for stability in the public
service and the serious implications this case may cause on the effective administration of
the executive department. Although no appeal was made within the reglementary period to
appeal, nevertheless, the departure from the general rule that the extraordinary writ of
certiorari cannot be a substitute for the lost remedy of appeal is justified because the
execution of the assailed decision would amount to an oppressive exercise of judicial
authority.13

Petitioner maintains that the assailed DAO-99-14 and the implementing memorandum were
valid and that the trial court should have taken judicial notice of Republic Act No. 6734,
otherwise known as "An Organic Act for the Autonomous Region in Muslim Mindanao," and
its implementing Executive Order 429,14 as the legal bases for the issuance of the assailed
DAO-99-14. Moreover, the validity of R.A. No. 6734 and E.O. 429 were upheld in the case
of Chiongbian v. Orbos.15 Thus, the respondents cannot, by means of an injunction, force the
DENR XII Regional Offices to remain in Cotabato City, as the exercise of the authority to
transfer the same is executive in nature.

It is apropos to reiterate the elementary doctrine of qualified political agency, thus:

Under this doctrine, which recognizes the establishment of a single executive, all executive
and administrative organizations are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the Constitution or law to act in person or
the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief Executive. 16

This doctrine is corollary to the control power of the President as provided for under Article
VII, Section 17 of the 1987 Constitution, which reads:
Sec. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

However, as head of the Executive Department, the President cannot be expected to

exercise his control (and supervisory) powers personally all the time. He may delegate some
of his powers to the Cabinet members except when he is required by the Constitution to act
in person or the exigencies of the situation demand that he acts personally. 17

In Buklod ng Kawaning EIIB v. Zamora,18 this Court upheld the continuing authority of the
President to carry out the reorganization in any branch or agency of the executive
department. Such authority includes the creation, alteration or abolition of public
offices.19 The Chief Executive’s authority to reorganize the National Government finds basis
in Book III, Section 20 of E.O. No. 292, otherwise known as the Administrative Code of
1987, viz:

Section 20. Residual Powers. – Unless Congress provides otherwise, the President shall
exercise such other powers and functions vested in the President which are provided for
under the laws and which are not specifically enumerated above or which are not delegated
by the President in accordance with law.

Further, in Larin v. Executive Secretary,20 this Court had occasion to rule:

This provision speaks of such other powers vested in the President under the law. What law
then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines
the continuing authority to reorganize the national government, which includes the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create
and classify functions, services and activities and to standardize salaries and materials. The
validity of these two decrees is unquestionable. The 1987 Constitution clearly provides that
"all laws, decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed or revoked." So far, there is yet no law amending or repealing said
decrees.

Applying the doctrine of qualified political agency, the power of the President to reorganize
the National Government may validly be delegated to his cabinet members exercising control
over a particular executive department. Thus, in DOTC Secretary v. Mabalot,21 we held that
the President – through his duly constituted political agent and alter ego, the DOTC
Secretary – may legally and validly decree the reorganization of the Department, particularly
the establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera
Administrative Region, with the concomitant transfer and performance of public functions
and responsibilities appurtenant to a regional office of the LTFRB.

Similarly, in the case at bar, the DENR Secretary can validly reorganize the DENR by
ordering the transfer of the DENR XII Regional Offices from Cotabato City to Koronadal,
South Cotabato. The exercise of this authority by the DENR Secretary, as an alter ego, is
presumed to be the acts of the President for the latter had not expressly repudiated the
same.

The trial court should have taken judicial notice of R.A. No. 6734, as implemented by E.O. No.
429, as legal basis of the President’s power to reorganize the executive department,
specifically those administrative regions which did not vote for their inclusion in the ARMM. It
is axiomatic that a court has the mandate to apply relevant statutes and jurisprudence in
determining whether the allegations in a complaint establish a cause of action. While it
focuses on the complaint, a court clearly cannot disregard decisions material to the proper
appreciation of the questions before it.22 In resolving the motion to dismiss, the trial court
should have taken cognizance of the official acts of the legislative, executive, and judicial
departments because they are proper subjects of mandatory judicial notice as provided by
Section 1 of Rule 129 of the Rules of Court, to wit:

A court shall take judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines, the official acts of the legislative,
executive and judicial departments of the Philippines, the laws of nature, the measure of
time, and the geographical divisions. (Emphasis supplied)

Article XIX, Section 13 of R.A. No. 6734 provides:

SECTION 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect
when approved by a majority of the votes cast by the constituent units provided in paragraph
(2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety
(90) days or later than one hundred twenty (120) days after the approval of this Act: Provided,
That only the provinces and cities voting favorably in such plebiscite shall be included in the
Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do
not vote for inclusion in the Autonomous Region shall remain in the existing administrative
regions: Provided, however, That the President may, by administrative determination, merge
the existing regions.

Pursuant to the authority granted by the aforequoted provision, then President Corazon C.
Aquino issued on October 12, 1990 E.O. 429, "Providing for the Reorganization of the
Administrative Regions in Mindanao." Section 4 thereof provides:

SECTION 4. REGION XII, to be known as CENTRAL MINDANAO, shall include the following
provinces and cities:

Provinces

Sultan Kudarat

Cotabato

South Cotabato

Cities

Cotabato

General Santos

The Municipality of Koronadal (Marinduque) in South Cotabato shall serve as the

regional center.

In Chiongbian v. Orbos, this Court stressed the rule that the power of the President to
reorganize the administrative regions carries with it the power to determine the regional
centers. In identifying the regional centers, the President purposely intended the effective
delivery of the field services of government agencies.23 The same intention can be gleaned
from the preamble of the assailed DAO-99-14 which the DENR sought to achieve, that is, to
improve the efficiency and effectiveness of the DENR in delivering its services.

It may be true that the transfer of the offices may not be timely considering that: (1) there are
no buildings yet to house the regional offices in Koronadal, (2) the transfer falls on the month
of Ramadan, (3) the children of the affected employees are already enrolled in schools in
Cotabato City, (4) the Regional Development Council was not consulted, and (5) the
Sangguniang Panglungsond, through a resolution, requested the DENR Secretary to
reconsider the orders. However, these concern issues addressed to the wisdom of the
transfer rather than to its legality. It is basic in our form of government that the judiciary
cannot inquire into the wisdom or expediency of the acts of the executive or the legislative
department,24 for each department is supreme and independent of the others, and each is
devoid of authority not only to encroach upon the powers or field of action assigned to any of
the other department, but also to inquire into or pass upon the advisability or wisdom of the
acts performed, measures taken or decisions made by the other departments. 25

The Supreme Court should not be thought of as having been tasked with the awesome
responsibility of overseeing the entire bureaucracy. Unless there is a clear showing of
constitutional infirmity or grave abuse of discretion amounting to lack or excess of
jurisdiction, the Court’s exercise of the judicial power, pervasive and limitless it may seem to
be, still must succumb to the paramount doctrine of separation of powers. 26 After a careful
review of the records of the case, we find that this jurisprudential element of abuse of
discretion has not been shown to exist.1âwphi1

WHEREFORE, in view of the foregoing, the petition for review is GRANTED. The resolutions
of the Court of Appeals in CA-G.R. SP No. 58896 dated May 31, 2000 and August 20, 2001, as
well as the decision dated January 14, 2000 of the Regional Trial Court of Cotabato City,
Branch 15, in Civil Case No 389, are REVERSED and SET ASIDE. The permanent injunction,
which enjoined the petitioner from enforcing the Memorandum Order of the DENR XII
Regional Executive Director, is LIFTED.

SO ORDERED.

ROLEX SUPLICO, Petitioner,

vs.
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA
SECRETARY ROMULO L. NERI, and the NEDA-INVESTMENT COORDINATION COMMITTEE,
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by
DOTC SECRETARY LEANDRO MENDOZA, including the COMMISSION ON INFORMATION
AND COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE
TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND
COMMUNICATIONS TECHNOLOGY (ICT), headed by DOTC ASSISTANT SECRETARY ELMER
A. SONEJA as Chairman, and the TECHNICAL WORKING GROUP FOR ICT, AND DOTC
ASSISTANT SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF
THE DOTC FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE
CORPORATION, AMSTERDAM HOLDINGS, INC., AND ALL PERSONS ACTING IN THEIR
BEHALF, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179317

AMSTERDAM HOLDINGS, INC., and NATHANIEL SAUZ, Petitioners,

vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO
MENDOZA, COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, and
ASSISTANT SECRETARY LORENZO FORMOSO III, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179613

GALELEO P. ANGELES, VICENTE C. ANGELES, JOB FLORANTE L. CASTILLO, TRINI ANNE
G. NIEVA, ROY ALLAN T. ARELLANO, CARLO MAGNO M. REONAL, ETHEL B. REGADIO,
RAENAN B. MALIG, AND VINALYN M. POTOT, TOGETHER WITH LAWYERS AND
ADVOCATES FOR ACCOUNTABILITY, TRANSPARENCY, INTEGRITY AND GOOD
GOVERNANCE (LATIGO), Petitioners,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by
DOTC SECRETARY LEANDRO MENDOZA, and ZHONG XING EQUIPMENT (ZTE) COMPANY,
LTD., AND ANY AND ALL PERSONS ACTING ON THEIR BEHALF, Respondents.

RESOLUTION

REYES, R.T., J.:

Under consideration is the Manifestation and Motion1 dated October 26, 2007 of the Office of
the Solicitor General (OSG) which states:

The Office of the Solicitor General (OSG) respectfully avers that in an Indorsement dated
October 24, 2007, the Legal Service of the Department of Transportation and
Communications (DOTC) has informed it of the Philippine Government’s decision not to
continue with the ZTE National Broadband Network Project (see attachment 2). That said,
there is no more justiciable controversy for this Honorable Court to resolve. WHEREFORE,
public respondents respectfully pray that the present petitions be DISMISSED.

On November 13, 2007, the Court noted the OSG’s manifestation and motion and required
petitioners in G.R. Nos. 178830, 179317, and 179613 to comment.

On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his Consolidated
Reply and Opposition,3opposing the aforequoted OSG Manifestation and Motion, arguing
that:

66. Aside from the fact that the Notes of the Meeting Between President Gloria
Macapagal-Arroyo and Chinese President Hu Jintao held 2 October 2007 were not
attached to the 26 October 2007 Manifestation and Motion – thus depriving petitioners
of the opportunity to comment thereon – a mere verbally requested 1st Indorsement
is not sufficient basis for the conclusion that the ZTE-DOTC NBN deal has been
permanently scrapped.

67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without
the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese
President Hu Jintao to support its allegations or other proof of the supposed decision
to cancel the ZTE-DOTC NBN deal. Public respondents can certainly do better than
that.4

Petitioner Suplico further argues that:

79. Assuming arguendo that some aspects of the present Petition have been
rendered moot (which is vehemently denied), this Honorable Court, consistent with
well-entrenched jurisprudence, may still take cognizance thereof. 5

Petitioner Suplico cites this Court’s rulings in Gonzales v. Chavez,6 Rufino v. Endriga,7 and
Alunan III v. Mirasol8that despite their mootness, the Court nevertheless took cognizance of
these cases and ruled on the merits due to the Court’s symbolic function of educating the
bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and
rules.
On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R.
No. 179317, also filed their comment expressing their sentiments, thus:

3. First of all, the present administration has never been known for candor. The
present administration has a very nasty habit of not keeping its word. It says one
thing, but does another.

4. This being the case, herein petitioners are unable to bring themselves to feel even
a bit reassured that the government, in the event that the above-captioned cases are
dismissed, will not backtrack, re-transact, or even resurrect the now infamous NBN-
ZTE transaction. This is especially relevant since what was attached to the OSG’s
Manifestation and Motion was a mere one (1) page written communication sent by the
Department of Transportation and Communications (DOTC) to the OSG, allegedly
relaying that the Philippine Government has decided not to continue with the NBN
project "x x x due to several reasons and constraints."

Petitioners AHI and Sauz further contend that because of the transcendental importance of
the issues raised in the petition, which among others, included the President’s use of the
power to borrow, i.e., to enter into foreign loan agreements, this Court should take
cognizance of this case despite its apparent mootness.

On January 15, 2008, the Court required the OSG to file respondents’ reply to petitioners’
comments on its manifestation and motion.

On April 18, 2008, the OSG filed respondents’ reply, reiterating their position that for a court
to exercise its power of adjudication, there must be an actual case or controversy – one
which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. 9

Respondents also insist that there is no perfected contract in this case that would prejudice
the government or public interest. Explaining the nature of the NBN Project as an executive
agreement, respondents stress that it remained in the negotiation stage. The conditions
precedent10 for the agreement to become effective have not yet been complied with.

Respondents further oppose petitioners’ claim of the right to information, which they contend
is not an absolute right. They contend that the matters raised concern executive policy, a
political question which the judicial branch of government would generally hesitate to pass
upon.

On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is the
Highlights from the Notes of Meeting between President Gloria Macapagal-Arroyo and
Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on October 2,
2007. In the Notes of Meeting, the Philippine Government conveyed its decision not to
continue with the ZTE National Broadband Network Project due to several constraints. The
same Notes likewise contained President Hu Jintao’s expression of understanding of the
Philippine Government decision.

We resolve to grant the motion.

Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus,
with application for the issuance of a Temporary Restraining Order (TRO) and/or Preliminary
Injunction. The individual prayers in each of the three (3) consolidated petitions are:

G.R. No. 178830

WHEREFORE, it is respectfully prayed of this Honorable Court:

 1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58,
Section 5 of the Rules of Court, issue forthwith an ex parte temporary restraining
order enjoining respondents, their subordinates, agents, representatives and any and
all persons acting on their behalf from pursuing, entering into indebtedness,
disbursing funds, and implementing the ZTE-DOTC Broadband Deal;

2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish

petitioner or his undersigned counsel a certified true copy of the contract or
agreement covering the NBN project as agreed upon with ZTE Corporation;

3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to

Section 2, Rule 56 of the revised Rules of Court; and,

4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel
public respondents to forthwith comply with pertinent provisions of law regarding
procurement of government ICT contracts and public bidding for the NBN
contract.11 (Emphasis supplied)

G.R. No. 179317

WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as
follows:

A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a
bond in such amount as the Honorable Court may fix, a temporary restraining order
and/or writ of preliminary injunction be issued directing the Department of
Transportation and Communication, the Commission on Information and
Communications Technology, all other government agencies and instrumentalities,
their officers, employees, and/or other persons acting for and on their behalf to desist
during the pendency of the instant Petition for Mandamus from entering into any other
agreements and from commencing with any kind, sort, or specie of activity in
connection with the National Broadband Network Project;

B. the instant Petition for Mandamus be given due course; and,

C. after due consideration of all relevant issues, judgment be rendered directing

respondents to allow herein petitioners access to all agreements entered into with
the Government of China, the ZTE Corporation, and/or other entities, government
instrumentalities, and/or individuals with regard to the National Broadband Network
Project.12 (Emphasis supplied)

G.R. No. 179613

WHEREFORE, it is respectfully prayed of this Honorable Court to:

1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish

petitioner or his undersigned counsel a certified true copy of the contract or
agreement covering the NBN project as agreed upon with ZTE Corporation;

2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to

Section 2, Rule 56 of the Revised Rules of Court;

3. Annul and set aside the award of the contract for the national broadband network
to respondent ZTE Corporation, upon the ground that said contract, as well as the
procedures resorted to preparatory to the execution thereof, is contrary to the
Constitution, to law and to public policy;
 4. Compel public respondent to forthwith comply with pertinent provisions of law
regarding procurement of government infrastructure projects, including public
bidding for said contract to undertake the construction of the national broadband
network.13 (Emphasis supplied)

On September 11, 2007, the Court issued a TRO 14 in G.R. No. 178830, enjoining the parties
from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-
DOTC Broadband Deal and Project" as prayed for. Pertinent parts of the said Order read:

WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above-
entitled case, to wit:

"G.R. No. 178830 (Rolex Suplico vs. National Economic and Development Authority,
represented by NEDA Secretary Romulo L. Neri, and the NEDA Investment Coordination
Committee, Department of Transportation and Communications (DOTC), represented by
DOTC Secretary Leandro Mendoza, including the Commission on Information and
Communications Technology, headed by its Chairman, Ramon P. Sales, The
Telecommunications Office, Bids and Awards for Information and Communications
Technology Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as
Chairman, and The Technical Working Group for ICT, and DOTC Assistant Secretary Lorenzo
Formoso, and All Other Operating Units of the DOTC for Information and Communications
Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc.—Acting
on the instant petition with prayer for temporary restraining order and/or writ of preliminary
injunction, the Court Resolved, without giving due course to the petition, to

xxxx

(d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, enjoining the (i) National Economic and Development
Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation
and Communications, Commission on Information and Communications Technology, (iv)
Telecommunications Office, Bids and Awards for Information and Communications
Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating
Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation;
(vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on
their behalf from ‘pursuing, entering into indebtedness, disbursing funds, and implementing
the ZTE-DOTC Broadband Deal and Project’ as prayed for."

NOW THEREFORE, effective immediately and continuing until further orders from this Court,
You, Respondents (i) National Economic and Development Authority, (ii) NEDA-Investment
Coordination Committee, (iii) Department of Transportation and Communications,
Commission on Information and Communications Technology, (iv) Telecommunications
Office, Bids and Awards for Information and Communications Technology Committee (ICT),
(v) Technical Working Group for ICT, and all other Operating Units of the DOTC for
Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam
Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf are
hereby ENJOINED from "pursuing, entering into indebtedness, disbursing funds, and
implementing the ZTE-DOTC Broadband Deal and Project" as prayed for.15 (Emphasis
supplied.)

Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified true copies
of the "contract or agreement covering the NBN project as agreed upon with ZTE
Corporation." It appears that during one of the Senate hearings on the NBN project, copies of
the supply contract16 were readily made available to petitioners.17Evidently, the said prayer
has been complied with and is, thus, mooted.

When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting
held on October 2, 2007 in China, informed China’s President Hu Jintao that the Philippine
Government had decided not to continue with the ZTE-National Broadband Network (ZTE-
NBN) Project due to several reasons and constraints, there is no doubt that all the other
principal prayers in the three petitions (to annul, set aside, and enjoin the implementation of
the ZTE-NBN Project) had also become moot.

Contrary to petitioners’ contentions that these declarations made by officials belonging to

the executive branch on the Philippine Government’s decision not to continue with the ZTE-
NBN Project are self-serving, hence, inadmissible, the Court has no alternative but to take
judicial notice of this official act of the President of the Philippines.

Section 1, Rule 129 of the Rules of Court provides:

SECTION 1. Judicial Notice, when mandatory. – A court shall take judicial notice, without
introduction of evidence, of the existence and territorial extent of states, their political
history, forms of government and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution and history of the
Philippines, the official acts of the legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the geographical divisions.
(Emphasis supplied)

Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of
the official acts of the President of the Philippines, who heads the executive branch of our
government. It is further provided in the above-quoted rule that the court shall take judicial
notice of the foregoing facts without introduction of evidence. Since we consider the act of
cancellation by President Macapagal-Arroyo of the proposed ZTE-NBN Project during the
meeting of October 2, 2007 with the Chinese President in China as an official act of the
executive department, the Court must take judicial notice of such official act without need of
evidence.

In David v. Macapagal-Arroyo,18 We took judicial notice of the announcement by the Office of

the President banning all rallies and canceling all permits for public assemblies following the
issuance of Presidential Proclamation No. 1017 and General Order No. 5.

In Estrada v. Desierto,19 the Court also resorted to judicial notice in resolving the factual
ingredient of the petition.

Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty
of the executive officials20 of informing this Court of the government’s decision not to
continue with the ZTE-NBN Project is also presumed to have been regularly performed,
absent proof to the contrary. Other than petitioner AHI’s unsavory insinuation in its comment,
the Court finds no factual or legal basis to disregard this disputable presumption in the
present instance.

Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the
judiciary’s role of strengthening political stability indispensable to progress and national
development. Pontificating on issues which no longer legitimately constitute an actual case
or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial
discretion militates against resolving the academic issues, as petitioners want this Court to
do. This is especially true where, as will be further discussed, the legal issues raised cannot
be resolved without previously establishing the factual basis or antecedents.

Judicial power presupposes actual controversies, the very antithesis of mootness. In the
absence of actual justiciable controversies or disputes, the Court generally opts to refrain
from deciding moot issues. Where there is no more live subject of controversy, the Court
ceases to have a reason to render any ruling or make any pronouncement.

Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.
In Republic Telecommunications Holdings, Inc. v. Santiago,21 the lone issue tackled by the
Court of Appeals (CA) was whether the Securities Investigation and Clearing Department
(SICD) and Securities and Exchange Commission (SEC) en banc committed reversible error
in issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined
the execution of the questioned agreements between Qualcomm, Inc. and Republic
Telecommunications Holdings, Inc. (RETELCOM). The implementation of the agreements was
restrained through the assailed orders of the SICD and the SEC en banc which, however,
were nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying
for the reinstatement of the writ of preliminary injunction of the SICD and the SEC en banc.
However, before the matter was finally resolved, Qualcomm, Inc. withdrew from the
negotiating table. Its withdrawal had thwarted the execution and enforcement of the
contracts. Thus, the resolution of whether the implementation of said agreements should be
enjoined became no longer necessary.

Equally applicable to the present case is the Court ruling in the above-cited Republic
Telecommunications. There We held, thus:

Indeed, the instant petition, insofar as it assails the Court of Appeals’ Decision nullifying the
orders of the SEC en banc and the SICD, has been rendered moot and academic. To rule, one
way or the other, on the correctness of the questioned orders of the SEC en banc and the
SICD will be indulging in a theoretical exercise that has no practical worth in view of the
supervening event.

The rule is well-settled that for a court to exercise its power of adjudication, there must be an
actual case or controversy – one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution; the case must not be moot or
academic or based on extra-legal or other similar considerations not cognizable by a court of
justice. Where the issue has become moot and academic, there is no justiciable controversy,
and an adjudication thereon would be of no practical use or value as courts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging.

In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to
prevent the concerned parties from pushing through with transactions with Qualcomm, Inc.
Given that Qualcomm, Inc. is no longer interested in pursuing the contracts, there is no
actual substantial relief to which petitioners would be entitled and which would be negated
by the dismissal of the petition.

The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals’
Decision had the effect of overruling the Court’s Resolution dated 29 January 1999, which
set aside the TRO issued by the appellate court.

A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the
realm of judicial review. The exercise of the power of judicial review is limited to actual cases
and controversies. Courts have no authority to pass upon issues through advisory opinions
or to resolve hypothetical or feigned problems.

While there were occasions when the Court passed upon issues although supervening
events had rendered those petitions moot and academic, the instant case does not fall under
the exceptional cases. In those cases, the Court was persuaded to resolve moot and
academic issues to formulate guiding and controlling constitutional principles, precepts,
doctrines or rules for future guidance of both bench and bar.

In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to
prevent the implementation of the assailed contracts calls for an appraisal of factual
considerations which are peculiar only to the transactions and parties involved in this
controversy. Except for the determination of whether petitioners are entitled to a writ of
preliminary injunction which is now moot, the issues raised in this petition do not call for a
clarification of any constitutional principle or the interpretation of any statutory provision. 22

Secondly, even assuming that the Court will choose to disregard the foregoing
considerations and brush aside mootness, the Court cannot completely rule on the merits of
the case because the resolution of the three petitions involves settling factual issues which
definitely requires reception of evidence. There is not an iota of doubt that this may not be
done by this Court in the first instance because, as has been stated often enough, this Court
is not a trier of facts.

Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng

Hukumang ito.

Respondent ZTE, in its Comment in G.R. No. 178830, 23 correctly pointed out that since
petitioner Suplico filed his petition directly with this Court, without prior factual findings
made by any lower court, a determination of pertinent and relevant facts is needed. ZTE
enumerated some of these factual issues, to wit:

(1) Whether an executive agreement has been reached between the Philippine and
Chinese governments over the NBN Project;

(2) Whether the ZTE Supply Contract was entered into by the Republic of the
Philippines, through the DOTC, and ZTE International pursuant to, and as an integral
part of, the executive agreement;

(3) Whether a loan agreement for the NBN Project has actually been executed;

(4) Whether the Philippine government required that the NBN Project be completed
under a Build-Operate-and-Transfer Scheme;

(5) Whether the AHI proposal complied with the requirements for an unsolicited
proposal under the BOT Law;

(6) Whether the Philippine government has actually earmarked public finds for
disbursement under the ZTE Supply Contract; and

(7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply
Contract is more extensive than that under the AHI proposal or such other proposal
submitted therefor.24

Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and 179613 require
prior determination of facts before pertinent legal issues could be resolved and specific
reliefs granted.

In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC
Broadband Deal and compel public respondents to forthwith comply with pertinent
provisions of law regarding procurement of government ICT contracts and public bidding for
the NBN contract.

In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the
contract for the national broadband network to respondent ZTE Corporation, upon the
ground that said contract, as well as the procedures resorted to preparatory to the execution
thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to
compel public respondent to forthwith comply with pertinent provisions of law regarding
procurement of government infrastructure projects, including public bidding for said
contract to undertake the construction of the national broadband network.
It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC
Broadband Deal" without any evidence to support a prior factual finding pointing to any
violation of law that could lead to such annulment order. For sure, the Supreme Court is not
the proper venue for this factual matter to be threshed out.

Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public
respondents to forthwith comply with pertinent provisions of law regarding procurement of
government ICT contracts and public bidding for the NBN contract." 25 It would be too
presumptuous on the part of the Court to summarily compel public respondents to comply
with pertinent provisions of law regarding procurement of government infrastructure
projects without any factual basis or prior determination of very particular violations
committed by specific government officials of the executive branch. For the Court to do so
would amount to a breach of the norms of comity among co-equal branches of government. A
perceived error cannot be corrected by committing another error. Without proper evidence,
the Court cannot just presume that the executive did not comply with procurement laws.
Should the Court allow itself to fall into this trap, it would plainly commit grave error itself.

Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa

batas sa pangongontrata ng pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya
ng nagawang paglabag dito.

Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our
decision which requires a judicial finding of facts.

Justice Antonio T. Carpio takes the view that the National Broadband Network Project should
be declared null and void. The foregoing threefold reasons would suffice to address the
concern of Our esteemed colleague.

The Court is, therefore, constrained to dismiss the petitions and deny them due course
because of mootness and because their resolution requires reception of evidence which
cannot be done in an original petition brought before the Supreme Court.

WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on
September 11, 2007 is DISSOLVED.

SO ORDERED.